When is Limited Scope Representation Unreasonable?

Three recurring risks show why lawyers must evaluate the client, the matter, and the excluded work – not simply document the limitation.

When a lawyer agrees to represent a client, defining the scope of representation helps to establish expectations between the lawyer and the client, to identify the work that the lawyer will perform, and to clarify the lawyer’s duties.
Limited scope representation can expand access to legal services by allowing a client to contract for distinct aspects of a legal matter. It can help clients use limited resources more strategically while preserving autonomy and flexibility. Despite the benefits, the proposed limitation must be reasonable for the client and the matter. While a written agreement can document the limitation, it may not cure an otherwise unreasonable limitation.
Professional Conduct Rule 1.2(c) permits Ohio lawyers to limit the scope of representation if the limitation is reasonable “under the circumstances” and is communicated to the client. Addressing reasonableness, the Ohio Ethics Guide on Limited Scope Representation cautions that not all matters can be handled in a limited manner, and not all clients are good candidates for limited representation.
Drawing on Rule 1.2(c), its comments, and the Ethics Guide, OBLIC previously identified the “Six Cs” when considering limited scope representation:

This general guidance may be easier to apply when viewed alongside decisions and ethics opinions identifying how limited-scope representation can go wrong. Although Ohio authority is limited, authorities from other jurisdictions point to several recurring risks.

1. Excluding work necessary to achieve the client’s objective. A limitation may be unreasonable when it removes a service essential to competent representation or reasonably necessary to accomplish the client’s goals. In In re Minardi, 399 B.R. 841 (Bankr. N.D. Okla. 2009), the court rejected a Chapter 7 lawyer’s attempt to exclude advice and assistance concerning reaffirmation agreements. In DeLuca v. Seare (In re Seare), 515 B.R. 599 (B.A.P. 9th Cir. 2014), the court affirmed sanctions where the lawyer failed to recognize and explain that dischargeability litigation was likely necessary before excluding it from the engagement.
Compare Michigan Ethics Opinion RI-348 (2010), concluding that such an exclusion is not inherently unethical if permitted by applicable law and the client can still be competently represented.

2. Failing to identify and communicate related legal issues. In Keef v. Widuch, 321 Ill. App. 3d 571 (Ill. App. Ct. 2001), written agreements limited the lawyers’ representation to workers’ compensation claims. The appellate court nevertheless held that the lawyers had a duty to advise the injured worker about possible third-party products-liability claims and the applicable limitations periods. If they did not investigate those claims, they were required to direct him to qualified counsel. The court did not require the lawyers to undertake the third-party claims but held that the written limitation did not eliminate their duty to alert the client to reasonably apparent remedies that could be lost if not timely pursued. This decision parallels Ohio ethics guidance that lawyers have an obligation to identify legal issues that are reasonably apparent even if the issue falls outside the agreed scope. A lawyer should alert the client to the issue, clearly explain that it falls outside of representation, and advise the client to consider obtaining separate counsel.

3. Failing to comply with tribunal- or state- specific rules. Even when a limited engagement is substantively reasonable, the lawyer must comply with applicable rules governing limited appearances, service, withdrawal, and drafting assistance. D.C. Bar Ethics Opinion 330, much of which offers parallel guidance to the Ohio Ethics Guide, emphasizes that lawyers should review the relevant tribunal’s rules before providing drafting assistance to a self-represented litigant. Before agreeing to ghostwrite for a pro se client, determine whether, how, and when the lawyer’s involvement must be disclosed, and discuss it with the client.

Taken together, these authorities reinforce a simple point: a signed agreement does not make every limitation reasonable. A limited scope arrangement may be improper when the excluded work is necessary to accomplish the client’s objective, required for competent performance of the accepted work, or cannot be meaningfully separated from it. Reduce the risk by assessing the client and the matter before proposing a limitation, clearly assigning the tasks the lawyer and client will each perform, explaining the consequences of excluded services, documenting warnings and referrals, and revisiting the scope as the matter develops. A form letter is likely inadequate, but carefully documented, thoughtful analysis supports a determination that the client provided informed consent to the limitation.

OBLIC policyholders can contact the Loss Prevention Hotline for guidance on limited scope engagements and other professional responsibility questions.

This information is made available solely for loss prevention purposes, which may include claim prevention techniques designed to minimize the likelihood of incurring a claim for legal malpractice. This information does not establish, report, or create the standard of care for attorneys. The material is not a complete analysis of the topic and should not be construed as providing legal advice. Please conduct your own appropriate legal research in this area. If you have questions about this email’s content and are an OBLIC policyholder, please contact us using the information above.